Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, March 12, 2014

Facebook Friendship Leads to Disqualification

A Fresno, California judge has disqualified himself from a civil case after the trial's conclusion but before signing the final judgment following his admission that he was Facebook friends with an attorney in the case.  The Fresno Bee reports:

The judge who smacked Paul Evert's RV Country with a $4.5 million defamation verdict has disqualified himself from the case after he admitted that he was Facebook friends with one of the lawyers who prevailed in the Fresno County Superior Court civil trial.

Judge Jeffrey Hamilton's decision to give up the case appears to follow state judicial ethics guidelines. It also puts the verdict in question because he had not signed the final judgment, and could give rise to Evert and his employees getting a new trial.

The story suggests that prior to trial commencing, the judge revealed to all parties that he was friends with the plaintiff's attorney.  No party lodged an ojection to the judge presiding upon that revelation.  However, the judge failed to disclose his Facebook friendship until after he ruled for the plaintiff, who was represented by his Facebook friend, in a non-jury trial.  In the defense motion to disqualify, defense counsel claimed that the judge's relationship with plaintiff's counsel was "was closer than had been previously disclosed by Judge Hamilton," and that had the Facebook connection been disclosed, defendant would not have waived a jury trial.

Notably, California Judge's Association Judicial Ethics Opinion No. 66 (2010) relating to judicial use of social networking states:

When a judge learns that an attorney who is a member of that judge’s online social networking community has a case pending before the judge the online interaction with that attorney must cease (i.e. the attorney should be“unfriended”) and the fact this was done should be disclosed ... Regardless of the nature of the social networking page, maintaining online contacts while a case is pending creates appearance issues that cannot be overcome through disclosure of the contacts.

See Also:

Craig Estlinbaum


March 12, 2014 in Ethics, Judges, Lawyers, Legal News | Permalink | Comments (1)

Monday, September 23, 2013

Supreme Court Links To Nowhere

Adam Liptak has an interesting essay in today's New York Times about ill-fated hyperlinks in online United States Supreme Court opinions and discusses possible solutions.

Craig Estlinbaum

September 23, 2013 in Legal News, Legal Research, Supreme Court | Permalink | Comments (0)

Monday, July 23, 2012

Federal Court Dismisses Fraud Case Against Cooley Law School

MacDonald, Jr. v. Thomas M. Cooley Law School, ____F.Supp.2d____(W.D. Mich. July 20, 2012), is the second case where a court has dimissed a fraud type of suit brought by former law students against a law school. The other case is  Gomez-Jimenez v. New York Law School, No. 65226/11 (NY Sup. Ct. Mar. 21, 2012), which we previously reported on. 

The claim was that the 2010 Employment Report and Salary Survey was fraudlent. In granting a motion to dismiss, the court explained:

                This Court agrees with Judge Schwietzer, a judge for the New York Supreme Court in a nearly                 identical case, for some of the reasons he discusses as to why reliance upon the two                 statistics would be unreasonable.  See Gomez-Jimenez v. New York Law Sch., Index                 No.652226/11, Seq. No. 002, Decision and Order (N.Y.S.Ct. Mar. 21, 2012) (Def.’s                 Supplemental Br. Ex. 1). This Court does not necessarily agree that college graduates The                 State of New York’s trial court. Case 1:11-cv-00831-GJQ  Doc #54 Filed 07/20/12 are                 particularly sophisticated in making career or business decisions.  Sometimes hope and                 dreams triumph over experience and common sense.  Nevertheless, it would be unreasonable                 for Plaintiffs to rely on two bare-bones statistics in deciding to attend a bottom-tier law                 school with the lowest admission standards in the country. In addition, “[i]t is widely                 accepted that American law schools,
                Cooley included, employ all sorts of legerdemain to boost employment rates in a                 contracting legal market” (Pls.’ Resp. at 5); once again, Plaintiffs state that they had other                 reasons to not rely upon the Employment Reports.  Furthermore, whether before or during                 Plaintiffs’ attendance at Cooley,it would have been unreasonable to continue to rely on the                 Employment Reports because of theeconomy’s massive downfall, which hit the legal business                 as hard as any.

Mitchell H. Rubinstein

Hat Tip: TaxProf Blog

July 23, 2012 in Law Schools, Law Schools, News, Law Students, Lawyer Employment, Lawyers, Legal News | Permalink | Comments (1)

Tuesday, February 28, 2012

2d Circuit Upholds Rule That Correspondence Law School Graduates Are Not Eligible To Sit For Bar

Bazadier v. McAlary, ___F.3d___(2d Cir. Feb. 16, 2012), is an important case which has gotten little press. The 2d Circuit upheld New York's bar admission rules which effectively bar graduates of law school correspondence and online schools from sitting for the New York bar examination. The case was brought by a California attorney who was fully licensed.

The decision is unreported and not particularly well written. One would have thought that a decision involving this important issue would have generated more attention by the court. The plaintiff challenged the court rules on Equal Protection and First Amendment grounds. In rejecting those arguments, the court stated:

 First, the district court properly concluded that, because Bazadier’s claims do notimplicate a fundamental right or a suspect class, they should be analyzed under rational basisreview. See Hayden v. Paterson, 594 F.3d 150, 169-70 (2d Cir. 2010). The challenged Rules,Sections 520.3 and 520.5(a) of Title 22 of the New York Compilation of Rules and Regulations,which effectively bar a graduate of a correspondence law school from taking the New York barexamination, are not based upon the content of the instruction provided by a law school and donot favor or disfavor any form of speech on the ideas or views expressed. Rather, the Rules areoccupational regulations that express a preference for one form of legal pedagogy over another.Second, the district court properly concluded that, based on the State’s argument thatcorrespondence-based study offers less assurance that a graduate has received a legal educationthat is adequate for membership to the bar, the Rules had a rational relation to the State’slegitimate interest in protecting the public from an incompetent bar. See In re Griffiths, 413 U.S.717, 725 (1973) (“[A] State [has] a substantial interest in the qualifications of those admitted tothe practice of law . . . .”); see also People v. Alfani, 227 N.Y. 334, 339 (1919) (“The reason whypreparatory study, educational qualifications, experience, examination and license by the courtsare required, is not to protect the bar . . . but to protect the public.”). Bazadier failed to “negativeevery conceivable basis” upon which the Rules could be upheld. Lewis v. Thompson, 252 F.3d567, 582 (2d Cir. 2001) (internal quotation marks omitted). Accordingly, the district courtproperly dismissed Bazadier’s equal protection claim based on his First Amendment right offreedom of speech.Finally, we concluded that the district court properly found that Bazadier had failed tostate a claim based on an infringement of his First Amendment right of freedom of associationfor the reasons stated in its decision and order. Accordingly, because Bazadier’s complaint failed to state a claim for relief, the district court properly dismissed it without first grantingleave to amend.

What I have always found interesting about New York's rules is that you do not even have to be a law school graduate to sit for the bar. As I understand it, you have to only go to one year of law school and then work as an apprentice for a lawyer. I actually know someone who has done this and he is a first rate lawyer. Therefore, I fail to understand the rationale for not allowing correspondence or online classes. If the student can pass the bar, that is what should count in my mind. 

Mitchell H. Rubinstein






February 28, 2012 in Bar Association Matters, Law Students, Lawyer Employment, Lawyers, Legal News | Permalink | Comments (1)

Monday, July 25, 2011

Lawyer Up. Get A Lawyer In 15 Minutes

You can get a Pizza in 15 minutes, so why can't you get a lawyer in 15 minutes. Well now you can. A June 16, 2011 NY Times article discusses how a company called "Lawyer Up" promises to find you a lawyer in 15 minutes. There is even an app for that. As the article states:

The service’s personal plan, aimed at young people, costs $4.95 a month. Those who do not have a subscription can pay a flat fee of $100 for the first call, which the company calls its “pay-in-a-pinch plan.” For all clients, an operator checks contact information and processes the lawyer’s initial fee of $250 on a credit card for the first hour of service.

Perhaps inevitably, there is an app for that, already available on Android phones and under development for the iPhone. It is basically a panic button, speed-dialing the service.

Lawyers do not pay to sign on to the roster, or for the client calls. Legal ethics rules frown on arrangements in which lawyers split fees with nonlawyers, and especially when lawyers pay people to round up clients — a practice known as using runners. A Connecticut lawyer who signed on, Patrick Tomasiewicz, said that when he got the call from the company, his main question was whether he would need to pay LawyerUp. The company satisfied him that its structure avoided runner issues.

Sorry, but I for one would not trust this service.

Mitchell H. Rubinstein


July 25, 2011 in Lawyer Employment, Lawyers, Legal News | Permalink | Comments (5)

Thursday, November 25, 2010

Celebrity Litigants

The August 11, 2010 National Law Journal ran an interesting article about celebrity litigants which readers may find of interest, here. The article discusses recent legal victories of actor Sacha Baron Cohen, LaToya Jackson, among others.

Mitchell H. Rubinstein

November 25, 2010 in Legal News | Permalink | Comments (1)

Monday, November 15, 2010

Theodore Kheel Dead at 96

On Nov. 12, 2010 Ted Kheel died at age 96, here. I never meet Mr. Kheel, but has a labor lawyer growing up and practicing in New York, he had a tremendous influence on me. He was involved in every major labor dispute in the 60's, 70's, 80's and 90's. He is the author of a multi-vol. treatise on labor law and was a named partner in Battle, Fowler and Kheel which later merged into Paul Hastings. When I was a student at the ILR School, I remember researching union information in the Kheel Center which was a depository of information housed in Catherwood Library.

Kheel was also involved in NYC politics. He was a frequent guest on T.V. and many people will miss him.

For additional converage, see New York Daily News,  New York Times. A Wikipedia article about his life is available here.

Mitchell H. Rubinstein

November 15, 2010 in Legal News | Permalink | Comments (1)

Sunday, July 25, 2010

Cyber Bullying Not Actionable

Though not an employment case, Finkel v. Dauber, ___Misc. 3d____(Nassau Co. July 22, 2010), is never-the-less, an important case for students of labor law as well as others. The case was an action for defamation based upon a teenagers posting on Facebook. What is most interesting about the decision, however, is that the court held that cyberbullying was not actionable. As the court explained:

 Insofar as the Plaintiff's counsel suggestion that the posts constitute cyber bullying, the Courts of New York do not recognize cyber or internet bullying as a cognizable tort action. A review of the case law in this jurisdiction has disclosed no case precedent which recognized cyber bullying as a cognizable tort action.

A New York Law Journal article about this case can be found here

Mitchell H. Rubinstein

July 25, 2010 in Legal News, Misc., Legal, New York Law | Permalink | Comments (3)

Wednesday, July 7, 2010

Hawaii Governor Vetoes Same Sex Civil Union Bill

Details in this July 7, 2010 article from Findlaw.

Mitchell H. Rubinstein

July 7, 2010 in Legal News | Permalink | Comments (0)

Thursday, April 29, 2010

George Mason Law School Facing Sex Discrimination Trial By Law Prof

The ABA Journal News Now recently reported on a sex discrimination suit that is headed for trial by a law professor against George Mason Law School. What makes the case somewhat unusual is that the plaintiff is the of one of the most prominent law professors in the country. This will be an interesting case to keep an eye on.

Mitchell H. Rubinstein

April 29, 2010 in Law Schools, News, Legal News | Permalink | Comments (0)

Saturday, January 23, 2010

New Jersey enacts medical marijuana law; no employer accommodation required

New Jersey enacted the Compassionate Use Medical Marijuana Act  and became the 14th state in the nation to legalize medical marijuana. The law removes statewide penalties for the possession and use of up to two ounces of marijuana when a New Jersey licensed physician recommends it for a qualifying medical condition. Patients will be issued ID cards in a program run by the state department of health and senior services. The marijuana will be obtained from tightly regulated alternative treatment centers set up across the state. The statute was signed into law by outgoing Gov. John Corzine.

Very significantly, the statute provides: "Nothing in this act shall be construed to require... a private health insurer to reimburse a person for costs associated with the medical use of marijuana, or an employer to accommodate the medical use of marijuana in any workplace."

Mitchell H. Rubinstein

January 23, 2010 in Legal News, Legislation | Permalink | Comments (0)

Wednesday, December 30, 2009

The Decades 25 Biggest Legal Stories

On Dec. 14, 2009, the National Law Journal published an article on the 25 most important legal decisions of the decade. That article is available here. So what are some of them? The National Law Journal lists the top 3 as follows:

1. War on terror tests the limits of law
From telecommunications to transportation, from immigration to interrogation, from detention to rendition, the war on terrorism strained the conventional framework of American law. It triggered new statutes, the expansion of old ones and, in critics' views, transgressed others.

2. For associates, a time of thrills and chills
Between 2000 and 2009, law firms doled out jaw-dropping bonuses, lavished benefits like never before and hiked first-year salaries to a point that drew the envy of federal judges. The decade also featured mass job cuts, pay reductions and a decided shift in power for recent law graduates, many of whom, at the decade's conclusion, were clamoring for even part-time work at living-wage levels.

3. Accounting scandals flood the courts

Lax corporate oversight combined with an intense desire to keep company stock prices high created a climate that allowed executive after executive to cross the line. Faced with a barrage of high-profile scandals, prosecutors responded by making corporate fraud a priority. But in their eagerness to get tough.

Mitchell H. Rubinstein

December 30, 2009 in Legal News | Permalink | Comments (0)

Tuesday, June 9, 2009

Connecticut and Maine Governors signs bills implementing same-sex marriage

Connecticut Governor M. Jodi Rell (R) signed into law (Pub. Act No. 09-13) which codifys the decision in Kerrigan v Commissioner of Public Health, which legalized same-sex marriage in the state. The law also recognizes out-of-state marriages, civil unions and broad domestic partnerships by same-sex couples as marriages in Connecticut, and, among other things, would merge Connecticut civil unions into marriages as of October 1, 2010.

Additionally, Maine Governor John E. Baldacci (D) signed into law a bill (L.D. 1020) legalizing same-same marriage. Gov. Baldacci stated: “In the past, I opposed gay marriage while supporting the idea of civil unions. I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage.” In so doing, Maine became the fifth state to legalize same-sex marriage, joining Vermont, Iowa, Massachusetts and Connecticut. However, a “people’s veto” effort will likely postpone any same-sex weddings in the state indefinitely, the Bangor Daily News reports.

Mitchell H. Rubinstein

June 9, 2009 in Legal News | Permalink | Comments (0) | TrackBack (0)

Sunday, May 10, 2009

N.Y. Governor Patterson Settles Reverse Discrimination Suit For $300,000!!

The May 5, 2009 New York Post reported, here,  that Gov. Patterson settled a reverse discrimination law suit for $300,000. Just after the Gov. had became Democratic minority leader, Patterson fired a photographer. The Post reports that the Gov. claims he settled on the advise of A.G. Andrew Cuomo, which his office denies. As the article states:

The Post disclosed yesterday that the state had quietly settled a federal racial-discrimination lawsuit that accused then-Senate Minority Leader Paterson, the state's first black governor, of firing Joseph Maioriello, a white Senate photographer, in 2003 in order to replace him with an African-American.

Paterson had been expected to be called as a "star witness" in the trial, an appearance the governor wanted to avoid, sources said.

Maioriello, a 26-year Senate employee, was fired from his $34,000-a-year job as a photographer two years earlier after Paterson ousted Martin Connor (D-Brooklyn) as the Senate minority leader.

Unfortunately, the article does not state who is paying the settlement. What to wager that it is not the Governor.

Adjunct Prof Blog previously reported on this case, Maioriello v. NYS Senate Minority, ___F.Supp.2d___ (N.D.N.Y. Feb. 12, 2008)(registration required), here. I am surprised and disappointed that the media has largely ignored this case. A sitting Governor being sued for reverse discrimination is big news. Settling for $300,000 when the plaintiff only reportedly made $34,000 per year is even bigger. Why do you suppose the case was settled for such a high figure??

Mitchell H. Rubinstein


May 10, 2009 in Legal News | Permalink | Comments (0) | TrackBack (0)

Friday, December 26, 2008

Lawyer of The Year

People Magazine does it. Barbara Walters does it. And the National Law Journal does it. Does what? Name the most interesting, important person of the year. The National Law Journal named  U.S. Department of Justice Inspector General Glenn A. Fine as its 2008 lawyer of the year. The article describes some of his accomplishments as follows:

Besides the more routine work of his office in conducting audits and reviews of the different components of the Justice Department, consider Fine's special reports in 2008:

• An investigation into the removal of nine U.S. attorneys in 2006.

• An investigation into allegations of the mishandling of classified documents by former Attorney General Alberto Gonzales.

• An investigation of allegations of politicized hiring by Monica Goodling and other staff in the Office of the Attorney General.

• An investigation of allegations of politicized hiring in the Department of Justice Honors Program and the Summer Law Intern Program.

• A review of the FBI's involvement in, and observations of, detainee interrogations in Guantánamo Bay, Cuba; Afghanistan; and Iraq.

• A review of the FBI's use of national security letters.

• A review of the FBI's use of Section 215 orders for business records.

Mitchell H. Rubinstein

December 26, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 16, 2008

More and More Litigants Are Appearing Pro Se

Both the Associated Press and the Wall Street Journal Law Blog had recent stories about the fact that more and more litigants are appearing pro se. As the Wall Street Law Journal Law Blog stated:

“The number of people serving as their own lawyers is on the rise across the country, and the cases are no longer limited to uncontested divorces and small claims. Even people embroiled in child-custody cases, potentially devastating lawsuits, and bankruptcies are representing themselves, legal specialists say,” the AP reports.

Worse yet, these do-it-yourselfers are apparently making things worse for the professionals.

To none litigators, you might be surprised about what I am about to say. I prefer to litigant against lawyers. It actually is much easier. With pro se's, one has to spend hours and hours figuring out what there complaint is. If they have an arguable cause of action, pro se's often loose it because it is drowned in hundreds of pages of documents. If your a defendant that is a good thing. When I have a pro se case, I also know that there almost always will be an appeal as they do not stop.

While I do believe that people should have the right to represent themselves, I also believe that no one should do so unless they absolutely have no other choice.

Mitchell H. Rubinstein

December 16, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Monday, December 15, 2008

Copies Atty General Motion Papers To Remove Illinois Governor Are Available

As we all know, Lisa Madigan, the Illinois Attorney General has filed an original action in the Supreme Court of Illinois seeking the removal of Governor Blagojevich. Her theory is that the Governor is unable or unfit to serve. A copy of her papers are available here. 
My own view is that AG should not prevail. Why? Because no matter how strong the evidence is, the Governor is presumed innocent. He certainly is able to govern and he is not physically unfit. I used the word "should" purposely because this involves Illinois politics and we may get a political type decision from the Court.
Now, I do not support what the Governor may have done. If the Governor is unwilling to resign, the Legislature should immediately take action to impeach him. If necessary, they should call a special session and get it down if he does not resign.

Mitchell H. Rubinstein 

December 15, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Disgraced Governor Spitzer's Dad Looses Major Discrimination Lawsuit

Father Of Former Governor Spitzer Looses Suit is an interesting December 5, 2008 New York Times article.
It is about a 1.3 million dollar jury verdict against former Governor Sptzer's Dad brought by a doorman and three black porters who brought a racial discrimination case. As the article states:

The four men, former workers at a luxury apartment house that Mr. Spitzer built and owned at 150 East 57th Street, asserted that Mr. Spitzer had them fired because of their race and had them replaced by lighter-skinned workers.

The doorman asserted that he, unlike the lighter-skinned doormen, was ordered to clean toilets and to do so with a toothbrush.

On the first day of a two-week trial in State Supreme Court, Mr. Spitzer, 84, using a cane and hearing aid, testified that he paid no attention to the race of the building’s staff and did not have a hand in hiring or firing its employees.

The six-person jury announced its verdict late Friday after deliberating for four hours. Afterward, the lawyer for the building workers, Anthony C. Ofodile, said, “The jury agreed with the plaintiffs that no one is above the law, no matter how much money that person has.”

Mitchell H. Rubinstein

December 15, 2008 in Legal News | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 10, 2008

Teacher Assistant Union Threatening Strike At Cal State

Inside Higher Education reported on December 10, 2008 that the UAW which has organized Teachers Assistants have called off their planned strike and agreed instead to a mediation offer from Darrell Steinberg, president of state’s Senate. Additional information about this dispute is available on the union's web site.
This dispute is far from over. Stay tuned.

Mitchell H. Rubinstein

December 10, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 9, 2008

Sit Down Strike Over Closed Plant

Sitdown strikes were, and to some extent, still are an effective union organizing strategy. The only problem-and its a big problem-is that such activity is generally unprotected under the NLRA which means that the workers can be fired unless they have the power to resist it.
Talks Fail to End Sit-In At Closed Plant is an interesting December 8, 2008, New York Times article with a twist. Reportedly, workers have refused to leave after their plant closed. Thus, the workers are technically not striking. However, the dispute has attracted the attention of several political leaders and therefore the sit in appears to be making its point.

Mitchell H. Rubinstein   

December 9, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)